Antitrust Rights of Action and Leniency Programs

Abstract

Currently, most jurisdictions around the globe provide victims of cartels a full right of action. However, a few jurisdictions do not provide any right of action to victims (e.g., Pakistan and Sri Lanka), while a few others merely provide victims a follow-on but not standalone right of action (e.g., Singapore, India, and Hong Kong). To facilitate these jurisdictions to decide whether to amend their competition laws and provide some or more rights of action to private parties, this Article aims to offer an additional perspective for consideration—that is, does expanding rights of action itself encourage or discourage leniency applications? Given that leniency programs are a critical tool in combating cartels, if providing some or more rights promotes leniency applications, then such a relationship is in favor of an expansion of victims’ rights. In contrast, if the two are negatively related, then lawmakers should be more cautious about the expansion. To analyze the impact that expanding rights of action has on leniency applications, this Article employs a game-theory model first created by Professor Joseph E. Harrington and later revised by the author.

Keywords: Antitrust Law, Private Right of Action, Private Enforcement, Leniency Program

JEL Classification: K21, K42, L4